Peter A Clarke

After many decades and multiple reports from the Australian Law Reform Commission, Victorian Law Reform Commission, the New South Wales Law Reform Commission, the Australian Competition and Consumer Commission, from the Federal and State Parliaments Australia now has a tort of serious invasion of privacy.

The tort was enacted by the Privacy and Other Legislation Amendment Act 2024 (Cth).

Under the  tort, a plaintiff will be able to establish a cause of action if:

1. there has been a serious invasion of the plaintiff’s privacy, either by:
   • an intrusion upon the plaintiff’s seclusion.  This includes  a defendant watching or eavesdropping on the plaintiff; or
   • a misuse of the plaintiff’s personal information;
2. the plaintiff had a reasonable expectation of privacy ;
3. the invasion of privacy was intentional or reckless;
4. the invasion of privacy was serious; and
5. the public interest in the plaintiff’s privacy outweighs any countervailing public interest. “Countervailing public interests” include freedom of expression, freedom of the press and public health and safety.

The tort is actionable per se. The plaintiff does not need to prove loss or damage in order to take action.

Defences include that:

1. consent;
2. the invasion of privacy was authorised by law; and
3. the invasion of privacy was necessary to prevent or lessen a serious threat to the life, health or safety of a person or defend property.

There is an exemption for journalists and media outlets, where the invasion involves the collection, preparation for publication or publication of journalistic material. A “journalist” is limited to professional journalists who are subject to the standards of professional conduct or a code of practice that applies to journalists.  This is a weakness in the regime.

Courts can award damages (including for emotional distress) or an account of profits, grant injunctions, and make a range of other orders including requiring an apology from the defendant. There is a cap on damages for non-economic loss and exemplary damages at the greater of A$478,550 or the maximum amount of damages for non-economic loss that could be awarded under defamation proceedings in Australia.

Plaintiffs are required to commence proceedings within three years of the invasion of privacy occurring, or within a year of becoming aware of the invasion of privacy, whichever is earlier.  The limitations period may be extended to 6 years.